L.v. Fire Officials Watching Retirement Age Court Test

February 26, 1985|The Morning Call

The Baltimore policy that forces firefighters to retire at age 55 is before the U.S. Supreme Court, and officials in the Lehigh Valley's three cities are weighing the effect the ruling might have on their retirement policies.

The nation's top court will hear arguments by the Reagan administration and six current or former Baltimore firefighters who say that city's retirement policy violates a federal law banning age discrimination in employment.

Baltimore's mandatory retirement policy forces firefighters to retire at 55, and the city does not have to show that their age hampers their ability to do the job.

The 4th U.S. Circuit Court of Appeals ruled last April that Baltimore's policy did not violate the 1967 federal Age Discrimination in Employment Act.

The appeals court said the civil-service law demonstrated the belief of Congress that those jobs demand "the strength and stamina of the young rather than the middle-aged. Older employees in these occupations should be encouraged to retire."

The Reagan administration, in the appeal to the Supreme Court, maintains the lower court misinterpreted the federal law. The lower court ruling imposes arbitrary age limits without showing they are necessary, the government appeal argues.

In 1980, Easton raised the mandatory retirement age from 65 to 70, in line with federal regulations.

Allentown would stand by its 1958 firefighter retirement policy should the U.S. Supreme Court decide to uphold Baltimore's policy.

Mayor Joseph S. Daddona said, "I would much prefer staying with the policy now in effect, unless, of course, the fire chief came up with another recommendation."

Said Toth, "Age is not a big hindrance. If the man is qualified and in good shape, he can do his job.

"To force a man to retire at 55 actually would be a loss, because we would be losing the knowledge he has acquired over the years," added the chief.

Allentown's ordinance makes retirement mandatory for firefighters who turn 70. However, staying on the job until that age is not simply a matter of routine.

A firefighter reaching age 65 and wanting to continue must file a request for retention, submitting with the application written letters from no fewer than two physicians attesting that the applicant's health would not detract from his service for another year.

This retention practice must be followed for each year, up to age 70, in which the firefighter wants to stay on the job after reaching 65.

The retention request first goes to the fire chief for approval. He, in turn, submits the application to City Council for final approval.

Since Allentown implemented mandatory retirement at age 70, only three firefighters stayed on the job to that age.

Another 13 remained on the job for periods ranging from one to three years after turning 65.

However, city records also indicate that it has only been in the past several years that the city follows the retention procedure to the extent of the law.

Prior to that, if a firefighter reached age 65 and didn't apply for pension, he simply stayed on the job with informal approval of the fire chief.

The records also indicate the majority of firefighters reaching age 65 take pension at that time, although some have stayed on for several months past the customary retirement time.

Three city firefighters, including E.R. Palos, were laid off in a budget- cutting move in April 1983. Administrators chose the three with the most seniority, rather than the newest employees, abiding by the policy established at the time by state Civil Service regulations, according to Richard Boyer, assistant city solicitor.

The so-called reverse seniority regulations required that the most-senior employees be laid off, with the apparent motivation for the law being, as in the case under review by the Supreme Court, that police officers and firefighters have special duties that may require physical attributes which can diminish with age.

Palos filed an age discrimination complaint with the U.S. Equal Employment Opportunity Commission (EEOC) and requested reinstatement. He also threatened the city with a civil suit for age discrimination.

Palos was reinstated last September. John Stebelski and Edward Broczkowski, the other two laid off with Palos, did not return. Stebelski had since reached the mandatory retirement age of 65, and Broczkowski found another job and declined the offer to return.

After reviewing the case, the legal bureau decided the city's chances of successfully defending a civil suit would be "slim," Boyer told City Council in January.

Attorneys worked out a proposed settlement by which the city would pay Palos nearly $29,000, with $17,000 going back into the firemen's pension fund, representing the amount Palos received during his 17-month "layoff."

As part of the settlement, Palos agreed not to sue and also dropped the EEOC complaint. Council agreed to the settlement, and it is being executed.

Boyer told council the state's fire Civil Service code has been amended since the Palos layoff, altering the reverse-seniority provision. In any further layoffs, the city must discharge the newest employees first, he said.